But ERA says termination 'not substantively unjustified'
A concrete truck driver who was terminated after testing positive for cannabis use was unjustifiably dismissed by his employer, the Employment Relations Authority (ERA) recently ruled.
Shane Hadfield was hired as a concrete truck driver by Atlas Concrete Limited in February 2016, and is subjected to a collective employment agreement (CEA) as well as a drug and alcohol policy in the workplace.
He was terminated in June 2021 after a random drug testing carried out by his employer on a Monday yielded a "non-negative" result for cannabis.
Hadfield, who was also previously dismissed for a drug issue by his previous employer, admitted that he smoked cannabis after an argument with his wife over the weekend.
According to the driver, he decided to go to a party on the Saturday before his random drug test, got drunk, and smoked cannabis before waking up on a park bench in Sandringham.
Investigation, dismissal
He was later called for an investigation meeting with his employer, where he was accompanied by a First Union organiser Stephen Hassan.
They defended that Hadfield was not a regular cannabis user, adding that he smoked cannabis on a Saturday night and was not impaired nor under its influence when he reported to work on Monday.
The urine tests also do not determine whether an employee is under the influence of cannabis, according to their defence.
Atlas said that it "genuinely considered" Hadfield's defence on the case and recognised that the driver was regretful and wanted another chance.
Despite this, the organisation still dismissed Hadfield for serious misconduct. It cited his termination with a previous employer over drug use, pointing out that a "warning would not do" because it was not his first time with a deliberate drug use.
Unjustified dismissal on procedural grounds
The ERA ruled in favour of Hadfield and concluded that he was unjustifiably dismissed by his employer on "procedural grounds."
According to the ERA, it was unreasonable for Atlas to rely on its drug and alcohol policy because there were clauses "inconsistent" with the terms and conditions with the CEA.
The ERA also had an issue with how Atlas cited Hadfield's termination with a previous employer as a factor in his dismissal.
"This was clearly Mr Hadfield's 'first occasion' testing positive with Atlas and should have been treated as such under the policy," the ERA stated in its ruling.
There is also no evidence that Atlas "genuinely considered" Hadfield's situation that led to his cannabis use, according to the ERA. It also didn't consider his previous good service in making the decision to dismiss, nor looked into other alternative disciplinary options.
"Atlas failed to turn its mind to any of the other options under the policy, and as such closed its mind to any alternatives in accordance with what can only be said to be zero-tolerance approachv," the ERA said.
'Not substantively unjustified dismissal'
However, the ERA ruled that Hadfield's dismissal was "not substantively unjustified" as it recognised that it was clearly reasonable for Atlas to rely on urine testing.
According to the ERA, it was fair for Atlas to recognise that a non-negative test above the screen cut off level of 15ng/mL for THC-COOH constituted "attending to work under the influence of ... drugs."
"It is important not to lose sight about why these tests are undertaken - for safety reasons," the ERA said.
The ERA ordered Atlas to pay Hadfield $7,310.12 in lost remuneration, and $16,000 in compensation for distress and humiliation. The compensation, however, will see a 20% cut because Hadfield admitted to his conduct.
